Petition — Massachusetts v. Taglieri

‘Gupreme Court, U. ‘7

FILED

areee 4 1973

CMIBUABL ROUAK, JR., GLERK

IN THE

SUPREME COURT OF THE UNITED

October Term, 1978

79-36)

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Ve

HENRY L. TAGLIERI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS.

FRANCIS X. BELLOTTI,

Attorney General

BARBARA A. H. SMITH,

Chief, Criminal Appellate

Division

BERNARD MANNING,

Assistant Attorney General

Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108

Tel. (617) 727-2240

TABLE OF CONTENTS

Page

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I. WHERE AN AFFIDAVIT

STATES FACTS DEMONSTRABLY

RELIABLE AND THIS INFORMATION

IS RELEVANT AND MATERIAL, THE

ISSUING MAGISTRATE'S

DETERMINATION OF PROBABLE

CAUSE IS CONCLUSIVE AND NOT

SUBJECT TO FURTHER REVIEW.....8

II. TO ENCOURAGE CONSISTENCY

IN THE JUDICIAL PROCESS, A

| STANDARD FOR REVIEWING THE

ISSUING MAGISTRATE'S

DETERMINATION OF PROBABLE

CAUSE IS NECESSARY...........12

Conclusion. eoeeee3s#sse*ee#eert#xe#eeeee#s#*t#ee#ee## ee e 22

| Appendix A. eoeeereoenste#enreneentfees@eeee349n+leee#n#eeee 2 3

Appendix B awww ww we eewePCgcerwtece@e@ePreeee€ 6€.0ee ee 8 35

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TABLE OF AUTHORITIES - iv-

Cases

od Lorene

Irby v. United States,

Page 314 F. 2d 251 (pC Cir.

Ay & k RRS ee ee sa a ee ee a

Bastida v. Henderson, Mapp v. Warden,

487 F. 2d 860, 863 (CA5 ook FF. Ze 1167, Li72 (CAZ

Ph yp | RE errr ee rer es : 3g) 6 eer ee ne rr

Commonwealth v. Alessio, Payne v. United States,

1979 Mass. Adv. Sh.95, 508 F. 2d 1391, 1393 (CA5

96-99 wcccccccccccccccccccccccrccccceehl | te | arr ea en re a eee ore y

Considine v. United States, Ramirez v. United States,

434 U.S. at9 F.. 24 Fiz. Fis (CAZ

Ne a a a bw ee A Per re eres re eer ee ee eee eee

Gracie v. United States, Sagansky v. United States,

15 F. 2d 644, 646 (CAl 358 F. 2d 195, 198-201 (CAl1

| Re a rrr eer es 7. Pe A BT 2s 6 ccs 6 bk Oe OS be 600 664.080 6 Oe RE

Spinelli v. United States,

393 U. S. 410, 419

CLOSES) 6 ccadeccedenewestvend eee Gas beetu ee

United States v. Berry,

463 F. 24 1278, 1265 (BC Cir.

O72) os chon 6b tR bead oe SROs OCRNS ee CkOEE

United States v. Bowers,

534 F. 2d 186, 188-189 (CA9

1976) 0.00.000406008886 500 e eee eee seebea?

United States v. Brinklow,

560 F. 2d 1003, 1006 (CA1O

LOTT) « cccntveavéeweecueewelseeueeeeneaet

United States v. Flotkin,

550 F. 2d 693, 695 n. 1 (CA1

A977) « woc 00600 te e6essebeneneeeweusreeeee

——e

United States v. Follette,

379 F. 2d 846, 848 (CA2

PDS obs cheat eas a «bea

baw 6s eb ebeebew see

United States v. Fried,

576 F. 2d 787, 791 (CA9

a

ieenecauer

United States v. Fuller,

441 F. 2d 755, 759 (CA4

Ce ee

United States v. Giacalone,

541 F. 2d 508, 513 (CA6

RT os Cb WA Oa es 6050 6 6O SO 6 Os or oe acca teke

United States v. Gomez Landano,

553 F. 2d 805, 810 (CA2

0 3 GSR IO CA ea ar a

cae teneee

oasis

United States v. Gosser,

339 F. 2d 102, 111 (CA6

DS «nak ne es 66K Eee Ch eeeeSe ROOD e Raat

United States v. Jordan,

349 F. 2d 107, 108 (CA6

eee a 6 oS 0 6 EOE E OO ARES 4O RRO OT

United States v. Lewis,

goa ¥. 26 377, 380 (CA2

ST ccntin kh cb eae awe oe ee eben eee

United States v. McNally,

338 F. Supp. 341, 346 (ED Pa.

oe | ee ee ry ey Oo eC ee ere

United States v. Melvin,

419 F. 2d 136, 142 (CA4

Le sth eth aa RRR E CERT ONE OS SEE SECRET

* wai. =<

United States v. Neal,

500 F. 2d 305, 308 (CA10

Ry 2 een ae Gay a ae Ce eee Mer ne

United States v. Olsen,

487 F. 2d 77, 82 (CA8

yg & SP ape Pees eee tes ae an prem eE eN ta

United States v. Rahn,

511 F. 2d 290, 292 (CA10

SOTO GS L.A 6% 46K ek bebe 8 ees heehee

United States v. Santarpio,

360 F. 2d 448, 454 (CA1

ROTTS 65.40 68d RAE OER OS che Kee es eee

United States v. Sevier,

539 F. 2d 599, 603 (CA6

SOTO ba 6 oN b4 60d Me ehh ee Okeke eb Cesenbaaed

United States v. Swihart,

554 F. 2d 264, 270 (CA6

ft taj POPE PTenT Per rer rT tree ree. te

United States v. Taylor,

334 F. Supp. 1050, 1053 (ED Pa.

BOTT iicncccanscekses bas ukeseseetssaneee

United States v. Ventresca,

380 U. S. 102, 109

FESES) Cc ckcc soda ee be cedbaseelernteneeesae

Warden v. Hayden,

387 U. S. 294

LAO6T) 6 kc cde cee naceceeenesiwke Coenen beene

Statutes.

Federal

28 U. S. C.

CESSF UF occ cadev veedéus een ce eensesseenee aan

Pew ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

HENRY L. TAGLIERI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS.

Opinion Below.

The opinion of the court below (App.

A.) is reported at 1979 Mass. Adv. Sh.

1405, 390 N. E. 2d 727.

Jurisdiction.

The decision of the court below was

entered on June 4, 1979. The jurisdiction

oa

of this court is invoked under 28 U.S.C.

§1257(3).

Questions Presented.

1. Whether the magistrate's issuance

of a search warrant is definitive on the

question of probable cause?

2. Whether a magistrate's

determination that facts alleged in an

affidavit are sufficient to constitute

probable cause for the issuance of a search

warrant, absent arbitrariness, is

conclusive and not subject to further

judicial review?

Constitutional Provisions Involved.

Fourth Amendment.

"The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches and

seizures, shall not be violated, and no

warrants shall issue, but upon probable

it

" iy’,

Ah een a Pionaneis e I: Sita e DA Sat a

a

cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be

seized."

Statement of the Case.

Prior Proceedings.

On August 1, 1974, Henry L. Taglieri

was arrested at his home, 123 Larkin

Street, Revere, Massachusetts. The

foliowing day.he was charged in two

criminal complaints with violations of the

gambling law by using a telephone for

wagering and being found with apparatus for

registering bets.

In September, 1974, defendant moved to

suppress all .vidence seized under the

search warrant. After hearing, argument,

and the submissions of briefs by the

parties, the District Court Judge denied

the motion. Defendant was put to trial on

the complaints and found guilty.

aga

Defendant appealed to the Superior

Court for a jury trial de novo. He then

again moved to suppress all evidence seized

under the search warrant. After hearing,

argument, and the submission of briefs by

the parties, the Superior Court judge again

denied the motion. On May 18, 1976, after

a jury waived trial before the hearing

judge, defendant was again found guilty on

both criminal complaints. He was sentenced

to a term of imprisonment but incarceration

was stayed pending appeal.

On October 19, 1978, the Massachusetts

Appeals Court found that the affidavit

executed in support of the application for

the issuance of the warrant did not

“provide the magistrate with a substantial

basis for concluding that any of such

articles was probably present on the

premises sought to be searched." (App. B)

reported at 1978 Mass. App. Ct. Adv. Sh.

1022, 381 N. E. 2d 1118.

The Commonwealth sought and was granted

further appellate review. The

Massachusetts Supreme Judicial Court after

ae ere ee

=-5=

argument reversed the judgments of the

Superior Court. On June 27, 1979 the

Supreme Judicial Court denied the

Commonwealth's request for a rehearing.

Statement of Facts.

The facts as reported by the Supreme

Judicial Court, are as follows:

A State Police officer, who had

experience in gathering information

concerning gambling and organized crime, by

affidavit (App. C) presented certain facts

on personal knowledge. In May, 1974,

pursuant to court order, an electronic

interceptor of telephone calls had been

authorized concerning two telephones at an

address in East Boston. In late May and in

the first part of June, 1974, State Police

officers intercepted and recorded various

telephone conversations made to and from

the telephones at the East Boston address.

The substance of these conversations showed

that several individuals were using these

telephones to conduct an illegal gambling

o6=

Operation. The police officer was able to

identify who these individuals were. Each

had been convicted of gambling violations.

(App. A, p. 25)

Two telephone calls were made from the

East Boston adéeress to a telephone listed

to the 4efendant and installed at the

Revere premises for which the search

warrant was sought. On May 29, 1974, at

approximately 3:25 P.M. one of the

identified individuals called the Revere

telephone number and spoke to a man he

called "Butch". During this telephone

call, "Butch" placed two bets with the

caller from East Boston. More than two

weeks later, at approximately 1:51 P.M. on

June 13, 1974, the same individual called

the Revere number from the East Boston

address, spoke to a man named "Henry" and

told “Henry" the results of the first race

at Suffolk Downs race track. [in East

Boston] Based on this information and his

personal knowledge, the police officer

represented that there was probable cause

to believe that certain gaming materials

6 bitttne on Peer ery

=,

and devices could be found in the Revere

house. A judge of the Superior Court

issued a warrant to search the Revere

premises. (App. A, p. 26)

On August 1, 1974, the police entered

and searched the Revere premises. They

seized various items, including papers with

notations indicating number pool play and

horse bets. (App. A, p. 26)

Reasons for Granting the Writ.

The petition presents an issue of law

that demands resolution by this Court to

alleviate confusion, create a uniform

practice among the circuits, and establish

a standard to guide state courts reviewing

a Fourth Amendment mandate .2/

1/the standards for reviewing a

magistrate's determination of probable

cause for the issuance of a search warrant,

differ among the circuits and are not

uniformly applied within the same circuit.

»Z-

Argument.

I. WHERE AN AFFIDAVIT STATES FACTS

DEMONSTRABLY RELIABLE AND THIS

INFORMATION IS RELEVANT AND

MATERIAL, THE ISSUING MAGISTRATE'S

DETERMINATION OF PROBABLE CAUSE IS

CONCLUSIVE AND NOT SUBJECT TO

FURTHER REVIEW.

Here, an experienced judge of the

Superior Court after reviewing an

Footnote No. 1 continued.

First Circuit.

In Gracie v. United States, 15 F. 2d

644, 646 (CAl 1966) cert. denied, 373 U. S.

748, the First Circuit initially

promulgated the rule that the magistrate's

determination of probable cause is

conclusive unless arbitrarily exercised.

No other First Circuit cases were found

-9-

affidavit, executed by a specially trained

police officer found probable cause and

issued a search warrant. The magistrate's

initial determination was subsequently

affirmed by trial justices of the District

and Superior Court levels. More than four

years after the fact, three appellate

judges sat in review of the magistrate's

judgment. They found the affidavit did not

“provide the magistrate with a substantial

basis for concluding that any of such

materials was probably present". (App. B)

Footnote No. 1 continued.

that considered the identical issue.

Notwithstanding its lack of continuous

recognition in the First Circuit, Gracie

has been extensively cited and regarded as

precedent in a number of other circuits.

Second Circuit.

Ramirez v. United States, 279 F. 2d

712, 716 (CA2 1960), regards the

magistrate's finding as a "substantial

-10-

The Supreme Judicial Court in rendering

its decision upon a federal constitutional

question imposed an unduly restrictive

standard of review upon the magistrate's

authority described in the Fourth Amendment.

Where, as here, the reliability of the

information is not in issue and some

relevant and material facts are stated in

the affidavit, a finding of probable cause

Footnote No. 1 continued.

factor tending to uphold the validity of

the warrant." Although the "substantial

factor concept" is cited in a subsequent

Second Circuit case, United States v.

Follette, 379 F. 2d 846, 848 (CA 2 1967) a

year later its effect was lessened by

reducing the forcefulness of the phrase

and to be considered as an "important

factor", United States v. Lewis, 392 F. 2d

377, 380 (CA2 1968) cert. denied, 393 U. S.

891 more current cases in that circuit

appear to adopt idea that "deference" will

be given to the magistrate's determination.

-11l-

by the magistrate should be deemed

conclusive and not subject to further

judicial review. Both public necessity and

the interests of justice demand that a

factual determination by an experienced

judae made in the exercise of his wisdom be

given great deference. Although

differences of opinion may continue to

exist among reasonable men, the

Constitution is not well served by

subjecting a finding a probable cause to

successive levels of judicial scrutiny

until overturned. The mandate of the

Fourth Amendment is met once the imprimatur

Footnote No. 1 continued.

Mapp v. Warden, 531 F. 2d 1167, 1172 (CA2

1976) cert. denied, 494 U. S. 983; United

States v. Gomez Londano, 553 F. 2d 805, 810

(CA2 1977).

Third Circuit.

The courts of this circuit invoke the

"great deference” standard as promulgated

by Spinelli v. United States, 393 U. S.

=}2-

of an impartial and reasonable magistrate

is interposed between the investigating

officer and his quarry.

II. TO ENCOURAGE CONSISTENCY

IN THE JUDICIAL PROCESS, A

STANDARD FOR REVIEWING THE

ISSUING MAGISTRATE'S

DETERMINATION OF PROBABLE CAUSE

IS NECESSARY.

The magistrate's determination of

probable cause is restricted to facts

stated in the affidavit and reasonable

inferences that he may draw from that

information. According to present

procedure, the court, when in sitting in

Footnote No. 1 continued.

410, 419 (1969). See "Great Deference"

United States v. McNally, 338 F. Supp.

341, 346 (E. D. Pa. 1972), reversed on

«1 3<

review of the magistrate's judgment, has

the same facts to scrutinize but the

inferences the reviewer makes may differ

based upon his education, training,

background, and experience. This does not

imply that inferences should not be made,

rather it suggests that inferences should

not be made subject to unlimited review.

The idea of according a magistrate's

determination conclusive should not be

considered anomalous when compared to

similar practices designed to minimize

judicial speculation. In a criminal appeal,

Foctnote No. 1 continued.

other grounds, 473 F. 2d 934 (CA3 1973)

affirmed (without opinion) 491 F. 2d 751

(CA3 1973),cert. denied, 417 U. S. 948,

(1974) and United States v. Taylor, 334 F.

Supp. 1050, 1053 (E. D. Pa. 1971). affirmed

469 F. 2d 284 (CA3 1972).

Fourth Circuit.

Here, the courts accord a "substantial

basis" and "great weight" to the

-l4-

the court views the evidence in a light

most favorable to the government. A

statute is endowed with a presumption of

constitutionality - if a statement of facts

could exist which would justify the

legislation, it is presumed to have existed

when the statute was passed.

Footnote No. 1 continued.

magistrate's judgment. United States v.

Fuller, 441 F. 2d 755, 759 (CA4 1971),

cert. denied, 404 U. S. 830, (1971); United

States v. Melvin, 419 F. 2d 136, 142 (CA4

1969).

Fifth and Sixth Circuits.

The courts of the Fifth Circuit

specifically adhere to the rule of

conclusiveness in the absence of

arbitrariness, Bastida v. Henderson, 487 F.

2d 860, 863 (CAS 1973) and the Sixth

Circuit has consistently held the

magistrate's determination conclusive

"since the purpose of the Fourth Amendment

has been served by his review of the

@1S=

A court of review should not adopt a

more severe standard when evaluating a

probable cause finding than it employs in

matters more crucial to the rights of the

criminal defendant. To tolerate such an

untoward result is to repudiate the

teaching of United States v. Ventresca, 380

U. S. 102, 109 (1965), defy the logic of

the Fourth Amendment, encourage the

continued diversion of limited judicial

resources, and discourage resort to the

very process designed to insure a person's

security from unwarranted intrusion by law

enforcement authorities.

Footnote No. 1 continued.

affidavit." United States v. Giacalone,

541 F. 2d 508, 513 (CA6, 1976). See also

United States v. Swihart, 554 F. 2d 264,

270 (CA6, 1977); United States v. Sevier,

539 F. 2d 599, 603 (CA6, 1976); Payne v.

United States, 508 F. 2d 1391, 1393 (CAS

1975); United States v. Jordan, 349 F. 2d

107, 108 (CA6 1965); United States v.

Gosser, 339 F. 2d 102, 111 (CA6 1964).

-16-

An appropriate standard was initially

promulgated by the First Circuit in 1926

and since followed in a number of

jurisdictions. In Gracie v. United States,

15 F. 2d 644, 646 (CA 1 1926) cert. denied,

273 U. S. 748. The Court reasoned:

"Upon the determination by the

Commissioner of whether probable cause

existed for the issuance of a warrant,

he is to exercise his own judgment

whether the facts alleged in the

affidavit constitute probable cause,

and unless this judgment is arbitrarily

exercised his determination that

probable cause exists is conclusive."

Footnote No. 1 continued.

Seventh Circuit.

A search of authorities did not

disclose any cases in this circuit giving

specific consideration to the matter in

issue.

\ Eighth Circuit.

This circuit gives "considerable

-17=

The courts of the Fifth Circuit

specifically adhere to the rule of

conclusiveness in the absence of

arbitrariness. Bastida v. Henderson, 487

F.2d 860 , 863 (CA5 1973) and the Sixth

Circuit has consistently held the

magistrate's determination conclusive

"since the purpose of the

Fourth Amendment has been served by his

review of the affidavit." United States v.

Giacalone, 541 F. 2d 508, 513 (CA6 1976)

A magistrate is not required to

approach the officer's affidavit with an

attitude of disbelief and strive to

construe its meaning in every way possible

to defeat its purpose. He may, within

reason, accord substance to the fact that

Footnote No. 1 continued.

deference" to the magistrate's

determination. See: "Considerable

Deference" - United States v. Olsen, 487 F.

2d 77, 82 (CA8 1973), cert. denied, 415 U.

S. 993 (1974) rehearing denied 416 U. S.

975 (1974).

-18-

an experienced officer believes that the

items sought would be found at the location

designated. While the naked averment made

by a seasoned officer that criminal

activity was afoot, by itself, would not

support a finding of probable cause, the

experienced officer's sworn statement must

be accorded some weight.

Since on the facts, the existence of an

illegal gambling enterprise must be ™

conceded, the magistrate had reasonable

Footnote No. 1 continued.

Ninth Circuit.

Here "deference" is accorded the

magistrate's judgment but its degree

varies, "great". United States v. Fried,

576 F. 2d 787, 791 (CA9 1978) cert.

denied, U. S. » 99 &. Ce. 295 (1978)

and "substantial" United States v. Bowers,

534 F. 2d 186, 188-189 (CA9 1976) cert.

denied, 429 U. S. 942 (1976).

Tenth Circuit.

Here again the courts within the

circuit are not in harmony when determining

0 a

a atbte

-19-

basis for concluding Taglieri was

implicated. East Boston was monitored

eight days out of a twenty day period.

Revere was called on two of these days. The

telephone call of May 29, 1974, was

initiated by "Chick" who operated an

extensive illegal bookmaking operation. The

bookmakers do not ordinarily telephone the

Footnote No. 1 continued.

the value given the magistrate's judgment.

"Deference" - United States v. Brinklow,

560 F. 2d 1003, 1006 (CA10 1977), cert.

denied, 434 U. S. 1047 (1978) and United

States v. Rahn, 511 F. 2d 290, 292 (CA10

1975), cert. denied, 423 U. S. 825 (1975).

"Substantial consideration" - United States

v. Neal, 500 F. 2d 305, 308 (CA10 1974).

D. C. Circuit.

This circuit accords "a presumption of

regularity" that attends the action of the

magistrate issuing the search warrant.

Irby v. United States, 314 F. 2d 251 (DC

Cir. 1973), cert. denied, 374 U. S. 842

(1963).

-20-

gambling public to solicit wagers,

Commonwealth v. Alessio, 1979 Mass. Adv.

Sh. 95 96-99 ever when the customer is in

the habit of betting substantial sums of

money. Sagansky v. United States, 358 F.

2d 195, 198-201 (CAl 1966) cert. denied,

385 U. S. 816.

A "lay off bet" is not so esoteric a

phrase that a magistrate of experience and

affairs must claim ignorance of its import

in illegal gambling operations. United

States v. Santarpio, 360 F. 2d 448, 454

(CAl 1977), cert. denied, 434 U. S. 984;

United States v. Flotkin, 550 F. 2d 693,

695 n. 1 (CAl 1977), cert. denied, sub.

nom., Considine v. United States, 434 U. S.

820.

When consideration is given to the

telephone call of June 13, 1974, again

initiated by "Chick" to Henry, the

magistrate could reasonably infer that this

disclosure of racing intelligence may be of

some importance to an illegal gambling

operation. In addition, the disclosure

informed Henry that the first race had been

-2l1-

run thwarting "post posting" and permitting

Henry to balance his books. It would not

be reasonable for the magistrate to infer

that a bookmaker calls a bettor simply to

inform him of race results, common

experience demonstrates the converse to be

true.

Finally, it is obvious that the Revere

telephone would not only be used in

evidence against the occupant of that

household but could also provide strong

corroboration of the East Boston operators

and would be admissible against "Chick" et

al. under the mere evidence rule of Warden

v. Hayden, 387 U. S. 294 (1967).

As the Court in United States v. Berry,

463 F. 2d 1278, 1285 (D. C. Cir. 1972)

observed

"But we must take into account that a

magistrate, experienced in these

matters is entitled to draw inferences

from acts which to the uninitiated and

unskilled would be seemingly innocent

acts."

-23-

=22-

APPENDIX A

Conclusion.

COMMONWEALTH vs. HENRY L. TAGLIERI.

Setatatte te

For the reasons stated above, the

petition for writ of certiorari should be

granted.

Suffolk. March 6, 1979. -— June 4, 1979.

Present: Hennessey, C.J., Quirico, Kaplan,

Wilkins, & Abrams, JJ.

—

Respectfully submitted,

FRANCIS X. BELLOTTI

Attorney General

Search and Seizure. Probable Cause.

Complaints received and sworn to in the

District Court of Chelsea on August 2, 1974.

BARBARA A. H. SMITH

: On appeal to the Superior Court a

Assistant Attorney General

motion to suppress evidence was heard by

Chief, Criminal Appellate

Divisi DeGuglielmo, J., a judge of the Municipal

fe)

ican Court of the City of Boston sitting under

statutory authority, and the cases were

heard by him.

BERNARD MANNING,

Assistant Attorney General

Criminal Bureau

After review by the Appeals Court, the

One Ashburton Place

Supreme Judicial Court granted leave to

obtain further appellate review.

a

Boston, Massachusetts 02108

Telephone (617) 727-2240

-24-

Bernard Manning, Assistant Attorney

General, for the Commonwealth.

Margaret Hayman, for the defendant.

WILKINS, J. We granted further

appellate review in this case to consider

whether there was sufficient information

contained in an affidavit in support of a

search warrant to constitute probable

cause. The Appeals Court held that there

was not. Commonwealth v. Taglieri, Mass.

App. Ct. (1978) .2/we agree.

We summarize the affidavit. A State

Police officer, who had experience in

gathering information concerning gambling

and organized crime, by affidavit presented

certain facts on personal knowledge. In

May, 1974, pursuant to court order, an

electronic interceptor of telephone calls

had been authorized concerning two

telephones at an address in East Boston.

In late May and in the first part of June,

1974, State police officers intercepted and

2/mass. App. Ct. Adv. Sh. (1978) 1022.

aati inthe pitipadnitiels a a ee Te

owes at

-25-

recorded various telephone conversations

made to and from the telephones at the East

Boston address. The substance of these

conversations showed that several

individuals were using these telephones to

conduct an illegal gambling operation. The

police officer was able to identify who

these individuals were. Each had been

convicted of gambling violations.

Two telephone calls were made from the

East Boston address to a telephone listed

to the defendant and installed at the

Revere premises for which the search

warrant was sought. On May 29, 1974, at

approximately 3:25 P.M. one of the

identified individuals called the Revere

telephone number and spoke to a man he

called "Butch." During this telephone

call, "Butch" placed two bets with the

caller from East Boston. More than two

weeks later, at approximately 1:51 P.M. on

June 13, 1974, the same individual called

the Revere number from the East Boston

address, spoke to a man named "Henry" and

told "Henry" the results of the first race

=-26-

at Suffolk Downs race track. Based on this

information and his personal knowledge, the

police officer represented that there was

probable cause to believe that certain

gaming materials and devices could be found

in the Revere house. A judge of the

Superior Court issued a warrant to search

the Revere premises.

On August 1, 1974, the police entered

and search the Revere premises. They

seized various items, including papers with

notations indicating number pool play and

horse bets. The defendant was charged with

the use of a telephone for the purpose of

accepting or placing wagers and with being

present in a place with betting apparatus.

The defendant was convicted in a District

Court and appealed to the Superior Court.

He filed a motion to suppress the evidence,

which was denied. He was then convicted in

a jury-waived trial in the Superior Court

and given concurrent sentences to a house

of correction. A Justice of the Appeals

Court granted a stay of execution pending

appeal.

pea stn i na le ce nr i a Oa

Nona

vats asta

-27-

The Commonwealth argues that the judge

issuing the search warrant could use his

experience to determine the significance of

the facts set forth in the affidavit. We

have recently acknowledged that a judge or

magistrate may apply common’. knowledge and

may draw reasonable inferences from the

facts before him. See Commonwealth v.

Alessio, Mass. ’ (1979) .2/see also

G.L. c. 271, §27. This is consistent with

the view that "affidavits for search

warrants...must be tested and interpreted

by magistrates and courts in a commonsense

and realistic fashion." United States v.

Ventresca, 380 U. S. 102, 108 (1965). We

would not, however, accept an argument that

the peculiar experience and knowledge of an

issuing jusge or magistrate would support

the issuance of a warrant. The result

should not turn on who the magistrate is or

how much special knowledge he may have. We

would accept only inferences which an

experienced magistrate could draw as a

B/ Mass. Adv. Sh. (1979) 95, 102.

=29-

commonsense conclusion from the information

set forth in the affidavit. See 1 W.R.

LaFave, Search and Seizure 463 (1978).

Although some courts have sometimes spoken

broadly of the deference to be accorded the

expertise of an issuing magistrate, a close

examination of the cases reveals no

willingness to defer to inferences which do

not follow as a matter of common sense from

the affidavit. See, e.g., United States v.

Berry, 463 F. 2d 1278, 1285 (D.C. Cir.

1972). Although weight should be given to

the judgment and experience of a judge or

magistrate who issued a warrant, with the

result that its issuance will be upheld if

there was a reasonable basis for finding

probable cause (Rosencranz v. United

States, 356 F. 2d 310, 314 [lst Cir.

1966]), the affidavit "must set forth the

basis for the magistrate's inference with

enough precision" for the determination to

be scrutinized at a subsequent hearing on a

motion to suppress or on appeal from a

decision on a motion to suppress. (id. at

317).

a ee Sa ee

ee ee

-29-

We agree with the Commonwealth that

weight must be given to the special

experience of a law enforcement who has

executed an affidavit. For example, where

such an officer states that he has drawn

inferences from facts which an

inexperienced person might not draw from

those facts, the magistrate may rely on

those inferences. Consequently, if a

seemingly minor fact has particular

significance to an expert, not apparent

from common knowledge and experience,

because of the method by which criminal

Operations are conducted, the affidavit

should disclose its significance. See 1

W.R. LaFave, Search and Seizure 463 (1978).

Although there were facts constituting

probable cause to believe that gaming

Operations were carried on at the East

Boston address, the facts in the affidavit

concerning the Revere address showed only

that (1) on one occasion a person at the

Revere address received a telephone call

and placed two bets, and (2), fifteen days

later, a person at the Revere address

=30-

received the results of a horse race.

These two facts do not constitute probable

cause to believe that gaming operations

were conducted at the Revere address, even

when coupled with the fact that the

telephne calls were made by a convicted

gambler from premises where it reasonably

appeared gaming operations were conducted.

The Commonwealth argues, however, that

an inference could be drawn from the facts

about the gambling operation which would

support the conclusion that the defendant

accepted wagers fron street bookies at the

Revere address and dealt with other bookies

at a "central" officer at the East Boston

premises. The Commonwealth suggests that

the call from. East Boston during which a

bet was placed by a person at the Revere

address was to collect layoff bets from a

bookie at the Revere address.+/as to

1/tp one form of more socially acceptable

risk taking, this process of lay-off bets

would be called reinsurance.

«Zia

the second telephone call, the Commonwealth

Suggests that the information concerning

the results of the first race at Suffolk

Downs advised a confederate at the Revere

address to take no further bets and

permitted the confederate to balance his

books crediting and debiting his customers’

accounts. The Commonwealth argues

generally that the issuing judge could have

concluded from common knowledge and

experience that bookies do not call

customers to receive bets and to disclose

race results. Hence, the calls from East

Boston to Revere must have been from one

part of the gambling operation to

another .2/

27x argument based on inferences

concerning the nature of the gambling

operations was made at the hearing on the

motion to suppress or in the Commonwealth's

brief on appeal. The claim first was

advanced in the Commonwealth's application

for further appellate review. If these

-32-

We reject any suggestion that a judge

Or magistrate could reasonably draw these

conclusions from the limited facts

presented in the affidavit. The

experienced officer who signed the

affidavit did not state that he drew any

inferences of cne sort the Commonwealth now

advances in support of the search. The

affidavit did not disclose the length or

contents of the telephone calls, beyond

what has been described above. For

example, it did not disclose the size of

the bets placed in the first telephone

call, which might have a significant

bearing on the Commonwealth's claim that

the transaction involved lay-off bets. The

Footnote No. 2 continued.

inferences were so apparent to experienced

observers, it is surprising that the

Commonwealth did not argue them at the

earliest stages of this case.

aed Da pila IN Ala abet ge Finn Te et SO Pe

=o 330

inferences which the Commonwealth argues

support the issuance of the warrant are not

ones which could have been drawn reasonably

as a matter of common knowledge by the

issuing judge .2/

We agree with the determination of the

Appeals Court that the two telephone

conversations referred to in the affidavit

in support of the search warrant were the

3/the Commonwealth argues that the

issuing judge had information from other

affidavits submitted simultaneously in

support of other warrant requests which

justified a finding of probable cause in

this case. If there were affidavits

submitted in support of other applications

for search warrants, they should have been

incorporated by reference or attached to

the affidavit, or at least presented at the

time of the hearing on the motion to

suppress. See Commonwealth v. Saville, 353

Mass. 458, 460 (1968); United States v.

Nolan, 413 F. 2d 850, 853 (6th Cir. 1968).

They do not appear in the record before us.

=34-

only specific facts on which probable cause

concerning the Revere premises could have

been based and that these conversations,

coupled with any inferences which might

reasonably be drawn from the circumstances,

did not “establish a probability that the

premises sought to be searched contained

equipment for registering bets or

conducting other gaming operations."

Commonwealth v. Taglieri, Mass. App.

Ct. (1978) .o/

Judgments of the

Superior Court reversed.

C/wass. App.Ct. Adv. Sh. (1978) 1022.

;

;

|

;

;

aA ORG E20 A AREAS OE hi EE Rees chia AE te

PR a EP ES ttt CRE NM IRL Oe a

ne Oe ee ee ee ee ee ee ee ek

= 35

APPENDIX B

COMMONWEALTH vs. HENRY L. TAGLIERI.

October 19, 1978.

The trial judges should have allowed

the defendant's motion to suppress articles

seized under a search warrant and

introduced in evidence which resulted in

convictions under G.L. c. 271, §§17 and

17A. The affidavit, dated July 31, 1974,

in support of the application for the

warrant, also dated July 31, 1974, did not

"provide [ ] the magistrate with a

substantial basis for concluding that any

of such articles was probably present" on

the premises sought to be searched.

Commonwealth v. Stewart, 358 Mass. 747, 749

(1971) .2/The only allegations in the

affidavit with reference to those premises

were that two telephone calls had been made

to a telephone billed to the

2/mass. App. Ct. Adv. Sh. (1977) 478.

-36-

defendant at the address of the premises

(herein referred to as the defendant's

telephone), one on May 29, 1974, and one on

June 13, 1974. Both calls had been made

from a tapped telephone (G.L. c. 272, §99)

assertedly used "to conduct an illegal

gaming operation." The affidavit alleges

that during the first telephone call, made

by "Chick," a person identified as "Butch"

at the defendant's telephone "place two

horse race bets with 'Chick'." In the

second conversation, also initiated by

"Chick," he “spoke to a man he called

"Henry' [and] ...gave Henry the results of

the first race at Suffolk Downs Race

Track." No other connection between the

defendant and users of the tapped telephone

is indicated. Whatever else the

conversations may show, they cannot be said

to establish a probability that the

premises sought to be searched contained

equipment for registering bets or

conducting other gaming operations.

Compare Commonwealth v. Chagnon, 330 Mass.

278, 282-283 (1953). We need not discuss

:

2

}

4

¥

a

atl BW 9 Bak eae 2 er tered 4 i mw ret stk res ene

i ee eee ee

o3F=

any of the other points argued by the

parties as to the validity of the affidavit

or of the interception under G.L. c. 272,

§99.

Judgments reversed.

Margaret Hayman, for the defendant.

Bernard Manning, Assistant Attorney

General, for the Commonwealth.

= 38-

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

AFFIDAVIT

I, John E. Conwell, being duly sworn,

depose and say:

1. I am a Trooper, duly appointed and

sworn, of the Massachusetts State Police,

assigned to the Organized Crime Section of

the Criminal Division of the Attorney

General's Office. In my capacity as a

State Police officer, I have had occasion

to gather information concerning gambling

and organized crime in Massachusetts.

2. I have information based upon

personal knowledge as follows:

On May 10, 1974, Chief Justice Walter

H. McLaughlin of the Superior Court of the

Commonwealth, issued an order authorizing

the electronic interception of telephone

= 39

calls made to and from telephones numbered:

(617) 567-3796 and (617) 567-2527 billed to

Joseph DiGiano, 310 Brandywyne Drive, East

Boston, Massachusetts.

On May 28, 29, and 30, 1974, and on

June 4, 7, 8, and 13, 1974, at various

times between the hours of 9:00 a.m. and 12

Midnight, the telephone conversations made

to and from telephone numbered (617)

567-3796, billed to Joseph DiGiano, 310

Brandywyne Drive, East Boston,

Massachusetts, were intercepted and

recorded by State Police officers.

On May 30 and 31, 1974, and June 4, 7,

8, and 13, 1974, at various times between

the hours of 9:00 a.m. and 12 Midnight the

telephone conversations made to and from

telephone numbered (617) 567-2527 billed to

Joseph DiGiano, 310 Brandywyne Drive, East

Boston, Massachusetts, were intercepted and

recorded by State Police officers.

The substance of the intercepted and

recorded by State Police officers.

Based upon physical surveillance at 310

Brandywyne Drive, East Boston, and upon the

-40-

content of the intercepted conversations, I

believe that the persons using the

telephones were:

1. Domenic Settipane, Massachusetts

Bureau of Identification No. 186644.

2. Steven Sansone, Massachusetts

Bureau of Identification No. 352685.

3. James C. Ciccarello, Massachusetts

Bureau of Identification No. 203653.

Each of these individuals has been

convicted of gaming violations.

During the course of the authorized

electronic surveillance, telephone calls

were initiated from those telephones to

various telephones in the Greater Boston

area.

One such telephone was: (617) 289-0546

billed to Henry L. Taglieri, 132 Larkin

Street, Revere, Massachusetts.

On May 29, 1974, at approximately 3:25

P.M. a man who identified himself as

"Chick" whom I believe to be James S.

Ciccarello, MBI #203653, initiated a

telephone call from telephone instrument

(617) 567-3796 to telephone instrument

-4l-

numbered (617) 289-0546 and spoke to a man

he called "Butch." During this call

"Butch" placed two horse race bets with

"Chick."

On June 13, 1974, at approximately 1:51

P.M. "Chick" using telephone instrument

numbered (617) 567-3796, initiated a

telephone call to telephone instrument

numbered (617) 289-0546, billed to Henry L.

Taglieri, 132 Larkin Street, Revere, and

spoke to a man he called "Henry." The

substance of this call was that "Chick"

gave "Henry" the results of the first race

at Suffolk Downs Race Track.

3. Based on the foregoing reliable

information and upon my personal knowledge,

there is probable cause to believe that, the

property hereinafter described may be found

in the rooms of the two story wood frame

dwelling house, color blue with white trim

situated and numbered 132 in Larkin Street

in the City of Revere, a photograph of said

building being attached to this affidavit,

and within the judicial district of said

court.

-42-

4. The property for which I seek

issuance of a search warrant is the

foliowing: Books, apparatus, and devices

used for the purpose of registering bets

upon the result of a trial or contest of

skill, speed or endurance, of a man or

beast; the buying and selling of pools;

including monies; and all illegal lottery

tickets, a share of a ticket, or any

writing, certificate, bill, token or other

device used in the furtherance of an

illegal lottery.

WHEREFORE, I respectfully request that

the Court issue a Warrant and Order of

seizure, authorizing the search of the

rooms of the two story wood frame dwelling

house, color blue with white trim, in the

City of Revere, situated and numbered 132

in Larkin Street, in the City of Revere, a

photograph of said building attached to

this Affidavit, and directing that if such

property or evidence or any part thereof be

found that it be seized and brought before

the Court altogether with such other and

-43-

further relief that the court may deem

proper.

Signed under the penalties of perjury.

JOHN E. CONWELL

State Police Officer

Then personally appeared the

above-named John E. Conwell and made oath

that the foregoing Affidavit subscribed by

him is true.

Before me this 3lst day of July, 1974.

JUSTICE OF THE SUPERIOR COURT